Lipsman v. McPherson

A nonsmoking tenant sued a smoking tenant of an apartment in the same building, alleging nuisance and negligence because the smoke from the defendant’s apartment regularly seeps into plaintiff’s apartment, causing him annoyance, discomfort and increasing his risk of physical harm due to exposure to secondhand tobacco smoke and of fire.  Defendant filed a motion to dismiss; on September 11, 1990, the motion was allowed as to negligence and risk of fire but denied as to private nuisance (Botsford, J.).  A jury-waived trial took place from March 11 through 13, 1991.  The court (Lauriat, J.) entered judgment for the defendant, ruling that the “annoyance” of smoke from 3 to 6 cigarettes per day “is not substantial and would not affect an ordinary person” and that the “plaintiff may be particularly sensitive to smoke, but an injury to one who has specially sensitive characteristics does not constitute a nuisance.”  See “He May Have Lost Out This Time, But She Better Not Burn the Toast,” Wall Street Journal, June 14, 1991, B1.  Shortly after this decision, the Defendant moved out.

6.2 TPLR 2.345, 19 M.L.W. 1605 No. 90-1918, (Middlesex, MA, Superior Court 1991).